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Court of Appeal:
Implied Consent to Being Recorded Is Defense to Lawsuit
Majority Says Woman Who Was on Notice That Calls She Placed to Credit Card Company Could Be Recorded May
Be Deemed to Have Authorized Recording of Calls Her Daughter, an Employee of That Company, Made to Her
By a MetNews Staff Writer
A credit card company that routinely recorded conversations over its call center agents’ desk telephones is not liable under the state’s Invasion of Privacy Act to a woman whose private chats with her daughter, an employee of the company, were electronically captured, the Fourth District Court of Appeal has held in in a 2-1 decision, holding that the plaintiff was on notice as to the recording policy and impliedly consented to the recording.
The majority reasoned that because the plaintiff was placed on notice that calls by her to HSBC might be recorded, calls to her from her daughter on an HSBC phone was subject to interception.
Justice Joan K. Irion of Div. One authored Thursday’s majority opinion, in which Acting Presiding Justice Richard D. Huffman joined. Justice William Dato dissented.
301 Conversations
The majority affirmed the judgment in favor of defendant HSBC Card Services, Inc.—for which the daughter, Alexandra Rojas had worked—and in favor of defendant HSBC Technology & Services (USA) Inc., which provided the telephone recording services. Suing them was Delia Rojas who maintained that she was unaware of the company’s recording of 301 conversations she had by phone with her daughter.
Those phoning HSBC would hear a recording advising, “This call is being recorded for quality purposes.” However, no such warning was provided where an HSBC agent placed the call.
Each of the conversations was initiated by the daughter, though often prompted by the mother leaving a message on her daughter’s cell phone to contact her. Employees were prohibited from making personal calls on company phones or to use their own cell phones in the work area.
Implied Consent Suffices
“[I]mplied consent constitutes ‘consent’ under the Privacy Act,” Irion wrote.
She said that Penal Code §632, which provides for the award of damages where the plaintiff’s land-line conversation was surreptitiously recorded, and §632.7, a like statute relating to conversations where the plaintiff used a cellphone, “both require a plaintiff to prove the recording was made ‘without the consent of all parties,’ but neither section requires express consent.”
Irion said that while the record does not support the trial court’s finding that HSBC had no intention to record the private conversations, “substantial evidence supports its finding that [Delia] Rojas impliedly consented to being recorded.”
She pointed out that the plaintiff had an HSBC Mastercard and a portion of the credit card agreement says: “You agree that we may listen to and record phone calls between you and our representatives.” Too, she recited, in making her monthly payment by phone, the plaintiff heard the automated message, “This call may be recorded.”
Justifiable Inference
The justice set forth:
“[T]he record supports the trial court’s finding that Rojas was ‘placed...on notice’—that is, she was notified—that the calls at issue were subject to recording. Rojas testified she had an HSBC credit card, and knew Alejandra worked for HSBC at a call center. Thus, Rojas knew the same company both issued her credit card and ran the call center from which Alejandra called her. And, as the trial court found, Rojas’s cardmember agreement for her HSBC credit card and her monthly payment calls disclosed that HSBC records calls. On these facts, the court could find Rojas was notified that, and therefore knew, the calls from Alejandra at HSBC were subject to recording.”
Irion added:
“[W]e recognize Rojas testified she did not know she was being recorded, and would not have continued the calls had she known. But the trial court could impliedly reject this testimony as not credible, or weigh the evidence regarding the prior disclosures more heavily than these denials. We do not revisit credibility findings, or…reweigh the evidence.”
Dato’s Dissent
Dato disagreed that Delia Rojas impliedly consented. He said in his dissent:
“[T]he trial court never determined that Rojas knew the calls were being recorded….Rather, it concluded that she was on ‘inquiry notice’ and ‘should’ or ‘would’ have been aware of the recordings. But this is the wrong legal standard….It is not enough that Rojas objectively should have known the calls were being recorded, much less that an inquiry (which she did not conduct) would have led her to that conclusion. Instead, the question is subjective—did Rojas agree to having the calls recorded?”
The dissenter continued:
“If she was told the call would be recorded and did not thereafter ‘decline to continue the communication’…, there would be a sufficient basis to conclude she impliedly consented to the recording. But proceeding with a phone call cannot imply consent if Rojas wasn’t aware it was being recorded. Any asserted neglect on her part in not asking if the calls were recorded cannot create consent. By applying the wrong standard, the trial court committed legal error, and its resulting conclusion cannot be reviewed for substantial evidence.”
‘Cardmember Agreement’
He minimized the significance of the advisement “contained in a prolix 14-page ‘Cardmember Agreement’ ” saying that calls to HSBC might be monitored. Dato explained:
“Nowhere does the agreement remotely suggest that if the cardmember receives a personal call from a friend or relative who happens to be employed by HSBC, that call will be recorded.”
The jurist also argued that the recording the plaintiff heard in phoning HSBC stating that “This call may be recorded” is meaningless. He asserted:
“The fact that this call may be monitored, or even this kind of call—i.e., one by the cardmember to HSBC to make a payment—does not give notice that an entirely different and unrelated kind of call—a personal one by an HSBC employee to her mother—will likewise be recorded.”
Order for Costs
In a separate appeal, Delia Rojas challenged an order that she pay HSBC $61,716.90 in costs relating to its expert witnesses because she spurned an offer in compromise, pursuant to Code of Civil Procedure §998, and did not obtain a better resolution at trial. The appeals court consolidated the appeals.
Irion found that the offer was a valid one and that the plaintiff failed to show the costs were excessive. The costs included $165 for a limousine ride for an expert.
Addressing that item, Irion said:
“Rojas appears to assume ‘limousine’ was a factual description of the vehicle (not just branding), and that it was more expensive than alternative forms of transport. But she identifies no evidence for these assumptions.”
The case is Rojas v. HSBC Card Services, Inc., D077931.”
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